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Filing # 66451817 E-Filed 01/11/2018 05:19:14 PM
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
PHILIP VON KAHLE, CURATOR, on behalf of CASE NO.: 16-21099-CA-44
THE GOVERNOR OF FLORIDA, for the use and
Benefit of the ESTATE OF VICTOR POSNER,
and for All Other Interested Parties,
Plaintiff,
ve
FIDELITY AND DEPOSIT COMPANY OF
MARYLAND,
Defendant and Third-Party Plaintiff,
Vv.
BRENDA D. NESTOR,
Third-Party Defendant/Cross-Claim
Plaintiff,
Vv.
PHILIP VON KAHLE, individually, MICHAEL
MOECKER AND ASSOCIATES, INC., MMA
OPERATIONS, INC., MOECKER REALTY
AUCTIONS, LLC d/b/a SVN MOECKER
REALTY AUCTIONS, and MOECKER
REALTY, INC.,
Cross-Claim Defendants.
/
REPLY IN SUPPORT OF CURATOR’S MOTION TO SEVER THIRD-PARTY CLAIMS
AND CROSS-CLAIMS FOR TRIAL
Plaintiff, Philip Von Kahle, as Curator (“Plaintiff’ or “Curator’), by and through his
undersigned counsel, pursuant to Fla. R. Civ. P. 1.180(a) and 1.270(b), files this reply in support
of his Motion to Sever Third-Party Claims and Cross-Claims for Trial and states:
1, This case presents a textbook example for severance of claims for trial. Even
though Fidelity and Ms. Nestor argue otherwise, the three suits now under this caption are three
free-standing cases. Ms. Nestor’s claims against the Curator are completely distinct, both in fact
00484186.DOCX3and in time, from the Curator’s claims on the Bond. Fidelity’s claim against Ms. Nestor may not
even proceed to trial
2. Rule 1.270(b) provides that claims may be severed for trial in furtherance of
convenience, and to avoid prejudice. The Curator’s aim is to wrap this litigation up as quickly and
efficiently as possible, in the hopes that he will make a recovery for the Estate’s creditors and its
beneficiaries, and close out an Estate that has become Miami-Dade County’s version of Jarndyce
y, Jarndyce.’ Convenience, and the prejudice that will result if they are not, dictates that the court
should exercise its discretion and sever the claims in this case for trial.
A. Fidelity’s Contingent Claims against Ms. Nestor Should Be Severed for Trial.
3 Fidelity’s third-party claim against Ms. Nestor should be severed for trial, because
it is a contingent claim
4 To quote from Fidelity’s response, “If F&D is not found liable, Nestor will not be
liable to F&D.” F&D’s Response to Motion to Sever at p. 16 (footnote omitted). Ms. Nestor agrees
with the Curator that Fidelity’s third-party claims against her are subject to severance: “Moreover,
severing Fidelity’s indemnification claim may be appropriate...” See Nestor’s Amended Response
to Motion to Sever at § 13.? Fidelity admits that its third-party claim against Ms. Nestor is
contingent on the outcome of the Curator’s claims against Fidelity. So if the Curator is
unsuccessful, why would Fidelity expend its resources preparing for a trial against Ms. Nestor that
may never happen?
| Jarndyce is a fictional, interminable probate proceeding which is a central plot device in Charles
Dickens’ Bleak House.
2 See also Nestor’s Amended Response at J 14, “Therefore, while it may be economical for the
court to sever the indemnification claim which is not predicated on adjudication of the same facts
as the other claims in this case...”
00484186 DOCK 3 25. Fidelity’s actions speak louder than its words in answering the foregoing question.
Fidelity has issued no discovery to Ms. Nestor in this case. It has not taken her deposition. Besides
filing its third-party crossclaim against Ms. Nestor Fidelity has done nothing in this case with
respect to its third-party claim against Ms. Nestor, other than argue that its claims against her
cannot be severed for trial
6 At least eight pages of Fidelity’s response is devoted to opposing severance of Ms
Nestor’s claims against the Curator alleging that the claims are inextricably interwoven. As
discussed below, that is simply not the case
7. Fidelity opposes severance of its claim against Ms. Nestor, because of the risk of
inconsistent verdicts. This is an imagined harm. Even if (i) Fidelity’s claims are severed; (ii) the
Curator is successful in his claims against Fidelity; and (iii) Fidelity tries its third-party
indemnification claims against Ms. Nestor, there is little risk of inconsistent verdicts. Because no
party to the Bond action has demanded a jury trial, the Court will be the trier of fact on the Curator’s
claims and Fidelity’s third-party claims against Ms. Nestor. The Court is certainly capable of
rendering consistent verdicts. Thus, the risk of inconsistent verdicts if Fidelity’s claim is severed,
is non-existent.
B. Ms. Nestor’s Claims Should Be Severed for Trial.
8. Despite protestations to the contrary, Ms. Nestor’s claims against the Curator and
the Curator’s claims against Fidelity and the Bond are not “inextricably intertwined.” The claims
involve completely different timeframes and different sets of facts.
9 The Curator’s claims against the Bond stem from Ms. Nestor’s conduct during her
tenure as personal representative from February 11, 2002 to April 30, 2015. The Curator was not
00484186 DOCK 3 3appointed until June, 2015, and Ms. Nestor’s claims generally center on the Curator’s actions that
that took place from the end of 2016 through 2017.
10. Ms. Nestor could have filed her cross-claim as a freestanding lawsuit, but chose to
file the claims before this Court on the very last day she could pursuant to the Court’s amended
scheduling order. Ms. Nestor’s action against the Curator is in no way, shape, or form, a
compulsory counterclaim. As Fidelity states in its response, “Substance should control over
form,” when analyzing whether the claims and defenses truly are interrelated. Fidelity’s Response
at p. 12
11 Ms. Nestor’s position that the third-party indemnification claim against her should
be severed undermines any argument against severing her claims against the Curator. Fidelity’s
third-party claim against Ms. Nestor is what brought her into this litigation. The Curator’s claim
against the Bond deals with Ms. Nestor’s conduct that occurred before April 30, 2015. Because
Ms. Nestor agrees that the claim that brought her into the suit (which operates on the same timeline
as the Curator’s claims and involves the same facts) can be severed, it logically follows that Ms.
Nestor’s third-party claims, based on a wholly separate timeline, are likewise subject to severance
12. Ms. Nestor’s (and Fidelity’s) argument that inconsistent verdicts may result if the
claims are severed is a neutral factor in the analysis. Because Ms. Nestor demanded a jury trial in
her third-party crossclaim that matter will already be before a different trier of fact than the
Curator’s claim against the Bond and Fidelity’s third-party claim, which will be tried by the Court.
Therefore, the bluster about potentially inconsistent verdicts is something that Ms. Nestor has
invited upon herself, whether the claims are tried together or separately, and should not factor into
the Court’s analysis.
00484186 DOCK 3 413 Even if Ms. Nestor did not demand a jury trial, there can be no good faith argument
that inconsistent verdicts are possible given the differences in timeframe and facts between the
Curator’s claim against the Bond and Ms. Nestor’s claims.
C. Convenience Dictates that the Claims Should Be Severed.
14 The Curator, a court-appointed fiduciary, pled his claim in this case against Fidelity
alone, to streamline its disposition. He did so to pursue a source of funds to pay off creditors of
the Estate, to the extent there are assets to pay them, and to close the Estate of Victor Posner, which
is what Ms. Nestor was either unwilling or unable to accomplish before the Probate Court removed
her for cause as personal representative of the Estate after a 13 year reign.
15. Fidelity, with Ms. Nestor, has thus-far been successful in frustrating the speedy
resolution of this case. After Fidelity filed its third-party claim against Ms. Nestor, her revolving-
door of counsel has essentially stalled this case since June, 2017, when her first counsel moved to
withdraw, creating a months-long vacuum before new counsel appeared. Since that time, two more
sets of counsel have appeared for Ms. Nestor in this case, obtained continuances, muddied the
waters, and, their goals accomplished, withdrew from representing her.
16. Her most recent counsel filed a cross-claim against the Curator and numerous third-
parties, and took one deposition of the Curator related solely to the Curator’s claim against the
Bond before withdrawing, on the grounds that Ms. Nestor was “unwilling to assist special counsel
or to authorize special counsel to incur the necessary fees and costs associated with completing
such discovery...” See Debtor’s Special Counsel’s Motion to Withdraw: Emergency Hearing
Requested attached hereto as Exhibit 1.
17. Since the Curator was appointed in June, 2015, between the Probate Case, this case,
and her various bankruptcies, Ms. Nestor has hired approximately 16 attorneys, nearly all of which
00484186 DOCK 3 5(with the exception of appellate counsel) have withdrawn from representing her in the intervening
time
18 There is no reason to think that this pattern will not continue. The pandemonium
that Ms. Nestor invites into any litigation in which she is involved, has delayed this case, and
caused prejudice to the Curator, and the creditors of the Estate (as well as Ms. Nestor herself) in
the form of administrative and litigation expenses that ballooned as a result of Ms. Nestor’s effort
to manipulate the judicial system.
19. Absent severance of Fidelity’s and Nestor’s claims from the Curator’s claims, it is
anyone’s guess when this action will finally make it to trial. The Curator has already been
prejudiced by Ms. Nestor’s inability to maintain counsel for more than a few months at a time,
which has had the effect of stalling this action since approximately June 8, 2017. Given Ms.
Nestor’s current counsel’s withdrawal, the Curator is under no illusion that this prejudice will abate
any time soon, if ever.
D. Conclusion
20. Fidelity’s basis for opposing the Curator’s motion for severance is based on some
conspiracy theory that the Curator is seeking to sever the claims in this case so he can take
inconsistent positions. This is a figment of Fidelity’s imagination. The Curator is a neutral court-
appointed fiduciary who is simply trying to effectuate the Probate Court’s directive to marshal any
remaining assets in the Victor Posner Estate, pay off the Estate’s creditors, and distribute the
remainder to the Estate’s beneficiaries. Ms. Nestor has caused the Estate to incur substantial
administrative expenses since she was removed, by opposing nearly every action the Curator has
taken. The Curator did not name Ms. Nestor as a party to this action, because she is not an
indispensable party to these claims, but also, in an attempt to avoid precisely the disorganized,
00484186 DOCK 3 6chaotic trial that will doubtlessly result if the claims are not severed. At this point, the Curator is
simply trying to overcome the significant procedural hurdles that have been placed in his way and
bring this case to conclusion. Severance of the third-party claims is the most reasonable and
efficient way to resolve this case, and, ultimately, close out the Estate of Victor Posner. Efficiency
and streamlining this case weigh in favor of severing Fidelity’s third-party claim against Ms.
Nestor, and Ms. Nestor’s cross-claim against the Curator and various third parties
WHEREFORE, the Curator respectfully request that the Court sever the trial of his claim
against Fidelity from (i) Fidelity’s claims against Nestor; and (ii) Nestor’s claims against Plaintiff,
Michael Moecker & Associates, Inc., Moecker Realty Auctions, LLC d/b/a SVN Moecker Realty
Auctions, and Moecker Realty, Inc., and grant such other and further relief as the Court deems just
and proper.
00484186 DOCK 3 7Dated: January 11, 2018.
(00484186.DOCX 3
BAST AMRON LLP
Co-Special Counsel for the Curator
SunTrust International Center
One Southeast Third Ave., Suite 1400
Miami, Florida 33131
Telephone: 305.379.7904
Facsimile: 305.379.7905
Brett M. Amron (FBN 148342)
E-mail: bamron@bastamron.com
Jeremy S. Korch (FBN 14471)
E-mail: jkorch@bastamron.com
Hayley G. Harrison (FBN 105157)
E-mail: hharrison@bastamron.com
-And-
The Cochran Firm — South Florida
Co-Special Counsel for the Curator
657 South Drive, Suite 304
Miami Springs, FL 33166
Telephone: 305.567.1200
Facsimile: 305.856.7747
Scott W. Leeds (FBN 372552)
E-mail: swleeds@cochranfirm.com
By: /s/ Brett M. Amron
Brett M. Amron (FBN 148342)
Jeremy S. Korch (FBN 14471)
Hayley G. Harrison (FBN 105157)
Scott W. Leeds (FBN 372552)CERTIFICATE OF SERVICE
THEREBY CERTIFY that a true and correct copy of the foregoing was filed with the Clerk
of Court via Florida Courts E-Filing Portal which will serve a copy upon the parties listed on the
Service List below on this the 11th day of January 2018
SERVICE LIST
William H. Strop
Ryan F. Carpenter
Attorneys for Fidelity and Deposit Company of
Maryland
BECKER & POLIAKOFF, P.A.
One East Broward Boulevard, Suite 1800
Fort Lauderdale, FL 33301
Telephone: (954) 987-7550
Facsimile: (954) 985-4176
Email: wstrop@bplegal.com
rearpenter(@bplegal.com
sgill@bplegal.com
Geoffrey E. Sherman, Esq.
Roy D. Oppenheim, Esq.
Jacquelyn K. Trask, Esq.
OPPENHEIM PILELSKY, PA
Attorneys for Brenda Nestor
2500 Weston Road, Suite 404
Weston, Florida 33331
Phone: (954) 384-6114
Facsimile: (954) 384-6115
E-mail
service@oplaw.net
geoffrey@oplaw.net
roy@oplaw.net
jtrask@oplaw.net
Paul Steven Singerman, Esq
Kathleen S. Phang, Esq.
Berger Singerman LLP
Attorneys for Cross-Claim Defendants
1450 Brickell Avenue, Suite 1900
Miami, FL 33131
Telephone: (305) 755-9500
Facsimile: (305) 714-4340
Email: singerman@bergersingerman.com
kphang@bergersingerman.com
lyun@bergermansingerman.com
drt@bergersingerman.com
mdiaz@bergersingerman.com
00484186 DOCK 3 9
/s/ Brett M. Amron
Brett M. Amron, Esq
By:EXHIBIT 1
(00213591.00¢xCase 17-21187-LMI Doc132 Filed 12/29/17 Page 1 of4
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
In re:
BRENDA DIANA NESTOR Case Number 17-21187-LMI
Chapter 11
Debtor.
—SSSSSSSSSsFsFSSSSSSSSSSSSSS
DEBTOR’S SPECIAL COUNSEL’S MOTION TO WITHDRAW: EMERGENCY
HEARING REQUESTED
Undersigned counsel, as special counsel for the Debtor, BRENDA DIANA NESTOR
(“Nestor” or the “Debtor”), hereby moves the court for entry of an order permitting the withdrawal
of Oppenheim & Pilelsky, P.A., as special counsel for the Debtor and states:
1. Irreconcilable differences have arisen between counsel and the debtor which
require the withdrawal of counsel.
Basis for Request for Emergency Hearing
2. The Debtor’s counsel requests an emergency hearing on the Motion to Withdraw
as itis currently representing the Debtor in a civil lawsuit styled Philip von Kahle, on behalf of the
Governor of Florida, for the use and benefit of the Estate of Victor Posner, and for All Other
Interest Parties v. Fidelity and Deposit Company of Maryland v. Brenda D. Nestor v. Philip von
Kahle, et al., Case Number 2016-021099-CA-01 in the Complex Business Division of the 11th
Judicial Circuit in and for Miami-Dade County, Florida (the “State Court Litigation”).
3. Pursuant to the Case Management Order entered by the Court in the State Court
Litigation, the Debtor is obligated to complete all fact discovery by January 15, 2018 and to
designate all expert witnesses by January 15, 2018Case 17-21187-LMI Doc132 Filed 12/29/17 Page 2 of 4
4 However, due to the Debtor’s unwillingness to assist special counsel or to authorize
special counsel to incur the necessary fees and costs associated with completing such discovery,
the Debtor’s special counsel will not be able to complete such discovery prior to the court-ordered
deadline, and thus is requesting approval to withdraw as counsel from this Honorable Court prior
to said deadline running in order to allow the Debtor to seek an extension from the Circuit Court
on such deadlines before they run so that she can procure new counsel to complete discovery
5 To provide some context to the necessity of such funding to proceed to trial on
behalf of the Debtor in the State Court Action, on December 26, 2017 the Curator’s counsel filed
a Petition in the Probate Estate of Victor Posner requesting $160,000.00 in additional cost retainers
(beyond the $60,000.00 in cost retainers they have already been given by the Probate Court) for
experts and consultants needed to prepare for trial in this case.
6. The Debtor’s counsel believes that it would be detrimental to the Debtor’s
bankruptcy estate for such deadlines to run without the Debtor having the opportunity to seek an
extension of such deadlines after procuring new counsel to represent her in the State Court
Litigation.
7. Moreover, the Debtor’s counsel at Oppenheim & Pilelsky, P.A. are concerned about
their ethical obligations to the Debtor as they are ethically obligated to continue such
representation until an Order is entered granting the Motion to Withdraw, but where they cannot
fulfill the obligations of the Debtor under the Case Management Order due to the Debtor’s refusal
to authorize and approve certain actions that must be taken immediately in order to timely complete
such discovery in compliance with the Case Management OrderCase 17-21187-LMI Doc132 Filed 12/29/17 Page 3 of 4
8 The Debtor’s counsel believes that this matter must be heard no later than January
5, 2018 to provide the Debtor with time to procure new counsel before the January 15, 2018
deadlines in the State Court Action
9. The undersigned has made a good faith effort to resolve the issues with the Debtor
but has not been able to do so, thereby necessitating the filing of this Motion to Withdraw and
requesting an emergency hearing on same.
WHEREFORE, undersigned counsel requests that the court enter an order permitting the
withdrawal of undersigned counsel on an expedited basis and such other relief that this Court
deems just and proper.
Dated: December 29, 2017
By: __/s/ Roy D. Oppenheim
ROY D. OPPENHEIM, ESQ
Oppenheim Pilelsky, P.A.
Florida Bar No.: 710016
roy@oplaw.net
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing was served on December 29,
2017 via EM/ECF to the Clerk of the Court and to all parties on the list to receive e-mail
notice/service for this case, via the Notice of Electronic Filing (which is incorporated herein by
reference), and via U.S. Mail to all parties on the attached Manual Notice List.
OPPENHEIM PILELSKY, P.A.
Attorneys for the Debtor
2500 Weston Road, Suite 404
Weston, Florida 33331
Telephone: (954) 384-6114
Facsimile: (954) 384-6115
By: _/s/ Jacquelyn K. Trask
JACQUELYN K. TRASK
Florida Bar No.: 0092109Case 17-21187-LMI Doc132 Filed 12/29/17 Page 4 of 4
Electronic Mail Notice List
The following is the list of parties who are currently on the list to receive email notice/service
for this case.
Alberta L. Adams aadams@mpdlegal.com, lpeterson@mpdlegal.com
Brett M Amron bamron@bastamron.com,
mdesvergunat@bastamron.com,jmiranda@bastamron.com,dtimpone@bastamron.com
Alberto M. Cardet — alcardet@gmail.com,
G1615@notify.cincompass.com;ebbycmecf@gmail.com
Spencer Gollahon — spencergollahon@earthlink.net,
sgollahon@tromberglawgroup.com;ECF@tromberglawgroup.com
Gregory S Grossman ggrossman@sequorlaw.com, ngonzalez@sequorlaw.com
Michael S Hoffman Mshoffman@hlalaw.com,
hlaecf@gmail.com;kszolis@hlalaw.com;agarcia@hlalaw.com;mshoffman@ecf.courtdriv
e.com
Steven M Lee steven@stevenleelaw.com, service@stevenleelaw.com
Ronald Lewis ron@lewisthomaslaw.com,
linda@lewisthomaslaw.com;lindath7 14@gmail.com;r40624@notify.bestcase.com
David B Marks _ brett.marks@akerman.com, charlene.cerda@akerman.com
David S Musgrave dmusgrave@gfrlaw.com, tleonard@gfrlaw.com
Office of the US Trustee USTPRegion21.MM.ECF@usdoj.gov
Jon Polenberg jpolenberg@bplegal.com, tfritz@bplegal.com;ydaneshfar@bplegal.com
Jason L Weiner jweiner@schaferandweiner.com, christine@schaferandweiner.com
Manual Notice List
The following is the list of parties who are not on the list to receive email notice/service for this
case (who therefore require manual noticing/service). You may wish to use your mouse to select
and copy this list into your word processing program in order to create notices or labels for these
recipients.
Daimler Trust
c/o BK Servicing, LLC
PO Box 131265
Roseville, MN 55113
Miami-Dade County Tax Collector
c/o Alexis Gonzalez
200 NW 2nd Avenue, Suite 430
Miami, FL 33128-1733
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Filing # 66451817 E-Filed 01/11/2018 05:19:14 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MIAMI-DADE COUNTY, FLORIDA PHILIP VON KAHLE, CURATOR, on behalf of CASE NO.: 16-21099-CA-44 THE GOVERNOR OF FLORIDA, for the use and Benefit of the ESTATE OF VICTOR POSNER, and for All Other Interested Parties, Plaintiff, ve FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant and Third-Party Plaintiff, Vv. BRENDA D. NESTOR, Third-Party Defendant/Cross-Claim Plaintiff, Vv. PHILIP VON KAHLE, individually, MICHAEL MOECKER AND ASSOCIATES, INC., MMA OPERATIONS, INC., MOECKER REALTY AUCTIONS, LLC d/b/a SVN MOECKER REALTY AUCTIONS, and MOECKER REALTY, INC., Cross-Claim Defendants. / REPLY IN SUPPORT OF CURATOR’S MOTION TO SEVER THIRD-PARTY CLAIMS AND CROSS-CLAIMS FOR TRIAL Plaintiff, Philip Von Kahle, as Curator (“Plaintiff’ or “Curator’), by and through his undersigned counsel, pursuant to Fla. R. Civ. P. 1.180(a) and 1.270(b), files this reply in support of his Motion to Sever Third-Party Claims and Cross-Claims for Trial and states: 1, This case presents a textbook example for severance of claims for trial. Even though Fidelity and Ms. Nestor argue otherwise, the three suits now under this caption are three free-standing cases. Ms. Nestor’s claims against the Curator are completely distinct, both in fact 00484186.DOCX3and in time, from the Curator’s claims on the Bond. Fidelity’s claim against Ms. Nestor may not even proceed to trial 2. Rule 1.270(b) provides that claims may be severed for trial in furtherance of convenience, and to avoid prejudice. The Curator’s aim is to wrap this litigation up as quickly and efficiently as possible, in the hopes that he will make a recovery for the Estate’s creditors and its beneficiaries, and close out an Estate that has become Miami-Dade County’s version of Jarndyce y, Jarndyce.’ Convenience, and the prejudice that will result if they are not, dictates that the court should exercise its discretion and sever the claims in this case for trial. A. Fidelity’s Contingent Claims against Ms. Nestor Should Be Severed for Trial. 3 Fidelity’s third-party claim against Ms. Nestor should be severed for trial, because it is a contingent claim 4 To quote from Fidelity’s response, “If F&D is not found liable, Nestor will not be liable to F&D.” F&D’s Response to Motion to Sever at p. 16 (footnote omitted). Ms. Nestor agrees with the Curator that Fidelity’s third-party claims against her are subject to severance: “Moreover, severing Fidelity’s indemnification claim may be appropriate...” See Nestor’s Amended Response to Motion to Sever at § 13.? Fidelity admits that its third-party claim against Ms. Nestor is contingent on the outcome of the Curator’s claims against Fidelity. So if the Curator is unsuccessful, why would Fidelity expend its resources preparing for a trial against Ms. Nestor that may never happen? | Jarndyce is a fictional, interminable probate proceeding which is a central plot device in Charles Dickens’ Bleak House. 2 See also Nestor’s Amended Response at J 14, “Therefore, while it may be economical for the court to sever the indemnification claim which is not predicated on adjudication of the same facts as the other claims in this case...” 00484186 DOCK 3 25. Fidelity’s actions speak louder than its words in answering the foregoing question. Fidelity has issued no discovery to Ms. Nestor in this case. It has not taken her deposition. Besides filing its third-party crossclaim against Ms. Nestor Fidelity has done nothing in this case with respect to its third-party claim against Ms. Nestor, other than argue that its claims against her cannot be severed for trial 6 At least eight pages of Fidelity’s response is devoted to opposing severance of Ms Nestor’s claims against the Curator alleging that the claims are inextricably interwoven. As discussed below, that is simply not the case 7. Fidelity opposes severance of its claim against Ms. Nestor, because of the risk of inconsistent verdicts. This is an imagined harm. Even if (i) Fidelity’s claims are severed; (ii) the Curator is successful in his claims against Fidelity; and (iii) Fidelity tries its third-party indemnification claims against Ms. Nestor, there is little risk of inconsistent verdicts. Because no party to the Bond action has demanded a jury trial, the Court will be the trier of fact on the Curator’s claims and Fidelity’s third-party claims against Ms. Nestor. The Court is certainly capable of rendering consistent verdicts. Thus, the risk of inconsistent verdicts if Fidelity’s claim is severed, is non-existent. B. Ms. Nestor’s Claims Should Be Severed for Trial. 8. Despite protestations to the contrary, Ms. Nestor’s claims against the Curator and the Curator’s claims against Fidelity and the Bond are not “inextricably intertwined.” The claims involve completely different timeframes and different sets of facts. 9 The Curator’s claims against the Bond stem from Ms. Nestor’s conduct during her tenure as personal representative from February 11, 2002 to April 30, 2015. The Curator was not 00484186 DOCK 3 3appointed until June, 2015, and Ms. Nestor’s claims generally center on the Curator’s actions that that took place from the end of 2016 through 2017. 10. Ms. Nestor could have filed her cross-claim as a freestanding lawsuit, but chose to file the claims before this Court on the very last day she could pursuant to the Court’s amended scheduling order. Ms. Nestor’s action against the Curator is in no way, shape, or form, a compulsory counterclaim. As Fidelity states in its response, “Substance should control over form,” when analyzing whether the claims and defenses truly are interrelated. Fidelity’s Response at p. 12 11 Ms. Nestor’s position that the third-party indemnification claim against her should be severed undermines any argument against severing her claims against the Curator. Fidelity’s third-party claim against Ms. Nestor is what brought her into this litigation. The Curator’s claim against the Bond deals with Ms. Nestor’s conduct that occurred before April 30, 2015. Because Ms. Nestor agrees that the claim that brought her into the suit (which operates on the same timeline as the Curator’s claims and involves the same facts) can be severed, it logically follows that Ms. Nestor’s third-party claims, based on a wholly separate timeline, are likewise subject to severance 12. Ms. Nestor’s (and Fidelity’s) argument that inconsistent verdicts may result if the claims are severed is a neutral factor in the analysis. Because Ms. Nestor demanded a jury trial in her third-party crossclaim that matter will already be before a different trier of fact than the Curator’s claim against the Bond and Fidelity’s third-party claim, which will be tried by the Court. Therefore, the bluster about potentially inconsistent verdicts is something that Ms. Nestor has invited upon herself, whether the claims are tried together or separately, and should not factor into the Court’s analysis. 00484186 DOCK 3 413 Even if Ms. Nestor did not demand a jury trial, there can be no good faith argument that inconsistent verdicts are possible given the differences in timeframe and facts between the Curator’s claim against the Bond and Ms. Nestor’s claims. C. Convenience Dictates that the Claims Should Be Severed. 14 The Curator, a court-appointed fiduciary, pled his claim in this case against Fidelity alone, to streamline its disposition. He did so to pursue a source of funds to pay off creditors of the Estate, to the extent there are assets to pay them, and to close the Estate of Victor Posner, which is what Ms. Nestor was either unwilling or unable to accomplish before the Probate Court removed her for cause as personal representative of the Estate after a 13 year reign. 15. Fidelity, with Ms. Nestor, has thus-far been successful in frustrating the speedy resolution of this case. After Fidelity filed its third-party claim against Ms. Nestor, her revolving- door of counsel has essentially stalled this case since June, 2017, when her first counsel moved to withdraw, creating a months-long vacuum before new counsel appeared. Since that time, two more sets of counsel have appeared for Ms. Nestor in this case, obtained continuances, muddied the waters, and, their goals accomplished, withdrew from representing her. 16. Her most recent counsel filed a cross-claim against the Curator and numerous third- parties, and took one deposition of the Curator related solely to the Curator’s claim against the Bond before withdrawing, on the grounds that Ms. Nestor was “unwilling to assist special counsel or to authorize special counsel to incur the necessary fees and costs associated with completing such discovery...” See Debtor’s Special Counsel’s Motion to Withdraw: Emergency Hearing Requested attached hereto as Exhibit 1. 17. Since the Curator was appointed in June, 2015, between the Probate Case, this case, and her various bankruptcies, Ms. Nestor has hired approximately 16 attorneys, nearly all of which 00484186 DOCK 3 5(with the exception of appellate counsel) have withdrawn from representing her in the intervening time 18 There is no reason to think that this pattern will not continue. The pandemonium that Ms. Nestor invites into any litigation in which she is involved, has delayed this case, and caused prejudice to the Curator, and the creditors of the Estate (as well as Ms. Nestor herself) in the form of administrative and litigation expenses that ballooned as a result of Ms. Nestor’s effort to manipulate the judicial system. 19. Absent severance of Fidelity’s and Nestor’s claims from the Curator’s claims, it is anyone’s guess when this action will finally make it to trial. The Curator has already been prejudiced by Ms. Nestor’s inability to maintain counsel for more than a few months at a time, which has had the effect of stalling this action since approximately June 8, 2017. Given Ms. Nestor’s current counsel’s withdrawal, the Curator is under no illusion that this prejudice will abate any time soon, if ever. D. Conclusion 20. Fidelity’s basis for opposing the Curator’s motion for severance is based on some conspiracy theory that the Curator is seeking to sever the claims in this case so he can take inconsistent positions. This is a figment of Fidelity’s imagination. The Curator is a neutral court- appointed fiduciary who is simply trying to effectuate the Probate Court’s directive to marshal any remaining assets in the Victor Posner Estate, pay off the Estate’s creditors, and distribute the remainder to the Estate’s beneficiaries. Ms. Nestor has caused the Estate to incur substantial administrative expenses since she was removed, by opposing nearly every action the Curator has taken. The Curator did not name Ms. Nestor as a party to this action, because she is not an indispensable party to these claims, but also, in an attempt to avoid precisely the disorganized, 00484186 DOCK 3 6chaotic trial that will doubtlessly result if the claims are not severed. At this point, the Curator is simply trying to overcome the significant procedural hurdles that have been placed in his way and bring this case to conclusion. Severance of the third-party claims is the most reasonable and efficient way to resolve this case, and, ultimately, close out the Estate of Victor Posner. Efficiency and streamlining this case weigh in favor of severing Fidelity’s third-party claim against Ms. Nestor, and Ms. Nestor’s cross-claim against the Curator and various third parties WHEREFORE, the Curator respectfully request that the Court sever the trial of his claim against Fidelity from (i) Fidelity’s claims against Nestor; and (ii) Nestor’s claims against Plaintiff, Michael Moecker & Associates, Inc., Moecker Realty Auctions, LLC d/b/a SVN Moecker Realty Auctions, and Moecker Realty, Inc., and grant such other and further relief as the Court deems just and proper. 00484186 DOCK 3 7Dated: January 11, 2018. (00484186.DOCX 3 BAST AMRON LLP Co-Special Counsel for the Curator SunTrust International Center One Southeast Third Ave., Suite 1400 Miami, Florida 33131 Telephone: 305.379.7904 Facsimile: 305.379.7905 Brett M. Amron (FBN 148342) E-mail: bamron@bastamron.com Jeremy S. Korch (FBN 14471) E-mail: jkorch@bastamron.com Hayley G. Harrison (FBN 105157) E-mail: hharrison@bastamron.com -And- The Cochran Firm — South Florida Co-Special Counsel for the Curator 657 South Drive, Suite 304 Miami Springs, FL 33166 Telephone: 305.567.1200 Facsimile: 305.856.7747 Scott W. Leeds (FBN 372552) E-mail: swleeds@cochranfirm.com By: /s/ Brett M. Amron Brett M. Amron (FBN 148342) Jeremy S. Korch (FBN 14471) Hayley G. Harrison (FBN 105157) Scott W. Leeds (FBN 372552)CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing was filed with the Clerk of Court via Florida Courts E-Filing Portal which will serve a copy upon the parties listed on the Service List below on this the 11th day of January 2018 SERVICE LIST William H. Strop Ryan F. Carpenter Attorneys for Fidelity and Deposit Company of Maryland BECKER & POLIAKOFF, P.A. One East Broward Boulevard, Suite 1800 Fort Lauderdale, FL 33301 Telephone: (954) 987-7550 Facsimile: (954) 985-4176 Email: wstrop@bplegal.com rearpenter(@bplegal.com sgill@bplegal.com Geoffrey E. Sherman, Esq. Roy D. Oppenheim, Esq. Jacquelyn K. Trask, Esq. OPPENHEIM PILELSKY, PA Attorneys for Brenda Nestor 2500 Weston Road, Suite 404 Weston, Florida 33331 Phone: (954) 384-6114 Facsimile: (954) 384-6115 E-mail service@oplaw.net geoffrey@oplaw.net roy@oplaw.net jtrask@oplaw.net Paul Steven Singerman, Esq Kathleen S. Phang, Esq. Berger Singerman LLP Attorneys for Cross-Claim Defendants 1450 Brickell Avenue, Suite 1900 Miami, FL 33131 Telephone: (305) 755-9500 Facsimile: (305) 714-4340 Email: singerman@bergersingerman.com kphang@bergersingerman.com lyun@bergermansingerman.com drt@bergersingerman.com mdiaz@bergersingerman.com 00484186 DOCK 3 9 /s/ Brett M. Amron Brett M. Amron, Esq By:EXHIBIT 1 (00213591.00¢xCase 17-21187-LMI Doc132 Filed 12/29/17 Page 1 of4 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA In re: BRENDA DIANA NESTOR Case Number 17-21187-LMI Chapter 11 Debtor. —SSSSSSSSSsFsFSSSSSSSSSSSSSS DEBTOR’S SPECIAL COUNSEL’S MOTION TO WITHDRAW: EMERGENCY HEARING REQUESTED Undersigned counsel, as special counsel for the Debtor, BRENDA DIANA NESTOR (“Nestor” or the “Debtor”), hereby moves the court for entry of an order permitting the withdrawal of Oppenheim & Pilelsky, P.A., as special counsel for the Debtor and states: 1. Irreconcilable differences have arisen between counsel and the debtor which require the withdrawal of counsel. Basis for Request for Emergency Hearing 2. The Debtor’s counsel requests an emergency hearing on the Motion to Withdraw as itis currently representing the Debtor in a civil lawsuit styled Philip von Kahle, on behalf of the Governor of Florida, for the use and benefit of the Estate of Victor Posner, and for All Other Interest Parties v. Fidelity and Deposit Company of Maryland v. Brenda D. Nestor v. Philip von Kahle, et al., Case Number 2016-021099-CA-01 in the Complex Business Division of the 11th Judicial Circuit in and for Miami-Dade County, Florida (the “State Court Litigation”). 3. Pursuant to the Case Management Order entered by the Court in the State Court Litigation, the Debtor is obligated to complete all fact discovery by January 15, 2018 and to designate all expert witnesses by January 15, 2018Case 17-21187-LMI Doc132 Filed 12/29/17 Page 2 of 4 4 However, due to the Debtor’s unwillingness to assist special counsel or to authorize special counsel to incur the necessary fees and costs associated with completing such discovery, the Debtor’s special counsel will not be able to complete such discovery prior to the court-ordered deadline, and thus is requesting approval to withdraw as counsel from this Honorable Court prior to said deadline running in order to allow the Debtor to seek an extension from the Circuit Court on such deadlines before they run so that she can procure new counsel to complete discovery 5 To provide some context to the necessity of such funding to proceed to trial on behalf of the Debtor in the State Court Action, on December 26, 2017 the Curator’s counsel filed a Petition in the Probate Estate of Victor Posner requesting $160,000.00 in additional cost retainers (beyond the $60,000.00 in cost retainers they have already been given by the Probate Court) for experts and consultants needed to prepare for trial in this case. 6. The Debtor’s counsel believes that it would be detrimental to the Debtor’s bankruptcy estate for such deadlines to run without the Debtor having the opportunity to seek an extension of such deadlines after procuring new counsel to represent her in the State Court Litigation. 7. Moreover, the Debtor’s counsel at Oppenheim & Pilelsky, P.A. are concerned about their ethical obligations to the Debtor as they are ethically obligated to continue such representation until an Order is entered granting the Motion to Withdraw, but where they cannot fulfill the obligations of the Debtor under the Case Management Order due to the Debtor’s refusal to authorize and approve certain actions that must be taken immediately in order to timely complete such discovery in compliance with the Case Management OrderCase 17-21187-LMI Doc132 Filed 12/29/17 Page 3 of 4 8 The Debtor’s counsel believes that this matter must be heard no later than January 5, 2018 to provide the Debtor with time to procure new counsel before the January 15, 2018 deadlines in the State Court Action 9. The undersigned has made a good faith effort to resolve the issues with the Debtor but has not been able to do so, thereby necessitating the filing of this Motion to Withdraw and requesting an emergency hearing on same. WHEREFORE, undersigned counsel requests that the court enter an order permitting the withdrawal of undersigned counsel on an expedited basis and such other relief that this Court deems just and proper. Dated: December 29, 2017 By: __/s/ Roy D. Oppenheim ROY D. OPPENHEIM, ESQ Oppenheim Pilelsky, P.A. Florida Bar No.: 710016 roy@oplaw.net CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing was served on December 29, 2017 via EM/ECF to the Clerk of the Court and to all parties on the list to receive e-mail notice/service for this case, via the Notice of Electronic Filing (which is incorporated herein by reference), and via U.S. Mail to all parties on the attached Manual Notice List. OPPENHEIM PILELSKY, P.A. Attorneys for the Debtor 2500 Weston Road, Suite 404 Weston, Florida 33331 Telephone: (954) 384-6114 Facsimile: (954) 384-6115 By: _/s/ Jacquelyn K. Trask JACQUELYN K. TRASK Florida Bar No.: 0092109Case 17-21187-LMI Doc132 Filed 12/29/17 Page 4 of 4 Electronic Mail Notice List The following is the list of parties who are currently on the list to receive email notice/service for this case. Alberta L. Adams aadams@mpdlegal.com, lpeterson@mpdlegal.com Brett M Amron bamron@bastamron.com, mdesvergunat@bastamron.com,jmiranda@bastamron.com,dtimpone@bastamron.com Alberto M. Cardet — alcardet@gmail.com, G1615@notify.cincompass.com;ebbycmecf@gmail.com Spencer Gollahon — spencergollahon@earthlink.net, sgollahon@tromberglawgroup.com;ECF@tromberglawgroup.com Gregory S Grossman ggrossman@sequorlaw.com, ngonzalez@sequorlaw.com Michael S Hoffman Mshoffman@hlalaw.com, hlaecf@gmail.com;kszolis@hlalaw.com;agarcia@hlalaw.com;mshoffman@ecf.courtdriv e.com Steven M Lee steven@stevenleelaw.com, service@stevenleelaw.com Ronald Lewis ron@lewisthomaslaw.com, linda@lewisthomaslaw.com;lindath7 14@gmail.com;r40624@notify.bestcase.com David B Marks _ brett.marks@akerman.com, charlene.cerda@akerman.com David S Musgrave dmusgrave@gfrlaw.com, tleonard@gfrlaw.com Office of the US Trustee USTPRegion21.MM.ECF@usdoj.gov Jon Polenberg jpolenberg@bplegal.com, tfritz@bplegal.com;ydaneshfar@bplegal.com Jason L Weiner jweiner@schaferandweiner.com, christine@schaferandweiner.com Manual Notice List The following is the list of parties who are not on the list to receive email notice/service for this case (who therefore require manual noticing/service). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients. Daimler Trust c/o BK Servicing, LLC PO Box 131265 Roseville, MN 55113 Miami-Dade County Tax Collector c/o Alexis Gonzalez 200 NW 2nd Avenue, Suite 430 Miami, FL 33128-1733